American Law? Or Christian Law, Muslim Law, Jewish Law?

"[A] basic American legal principle [is]: American courts apply American law, rather than one rule for Muslims, one rule for Christians, one rule for Jews, and so on." — Eugene Volokh, First Amendment law professor at UCLA.

Allowing Islamic shariah law to substitute for state law regarding inheritance and related matters would undercut the values of equal protection of the laws and equality before the law, and in many instances, would violate American law.

The Minnesota Court of Appeals has rejected an argument that would essentially have required a lower court to divide the proceeds of a wrongful-death suit under shariah (Islamic law) rules governing inheritance. The decision was based on technical grounds, leaving open the question of whether a state court would apply shariah in the future.

Nadir Ibrahim Ombabi, a 57-year-old taxi driver, was killed October 29, 2012, in a car accident outside Minneapolis. Ombabi was a native of Sudan, where he was a family doctor, and was working on becoming certified as a medical doctor in the U.S. when he died. He was active in Minnesota's Sudanese community.

Ombabi left behind a wife, mother, brother, and sisters. He married Nariman Sirag Elsayed Khalil in Sudan, under Islamic law. Reportedly, she was still living in Africa when Ombabi died, and he would "often send back money to help his family." His brother was living in California and a sister in Canada.

Ombabi's next of kin brought a wrongful-death claim, which was settled for $183,000. Minnesota law requires the proceeds of a wrongful-death suit to be given to "the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death."

Next of kin are basically everyone who qualifies as a potential heir under the state's intestacy law. States have laws governing how to distribute property when a person dies without leaving a will. In Minnesota, if the decedent has no children (as seems true of Ombabi), or if all of his children are also children of his widow, the widow inherits the entire estate. If, and only if, the decedent leaves neither spouse nor children, the estate passes to his parents. If he leaves no parents either, it goes to his brothers and/or sisters.

The district court found "no credible evidence to prove Mr. Ombabi's mother, brother, or sisters experienced a pecuniary loss, or more importantly what that pecuniary loss is, because of Mr. Ombabi's passing." It ordered that all of the proceeds (less expenses) be given to Ombabi's widow, Khalil.

Ombabi's brother objected that the court should have divided the proceeds under Islamic law, giving the widow only 25%, Ombabi's mother's estate 16.7%, and the balance distributed among Ombabi's siblings, with the brother receiving twice as much as each sister. He based this on the claim that "the law of all parties (the decedent, his widow and decedent's next of kin) is the Islamic Law and they are all Muslims and follow the specifics of the religion."

The court rejected that argument, on the grounds that it was unsupported by legal authority or argument, and that it was unclear whether it had been raised in the lower court. As a general rule, new issues may not be raised for the first time on appeal.

The court did not prohibit application of shariah to wrongful death suits or other cases. It only held that it found no legal or factual support that would justify applying it to Ombabi's case.

Sometimes American law does allow the implementation of foreign legal rules, or religious legal rules. A contract might, for instance, call for applying the law of Sudan, or a will might specify that the property be distributed one-fourth to the widow, one-sixth to the parents, one-sixth each to the three brothers, and one-twelfth to the one sister (whether or not that's the sharia-mandated split). A court may well enforce such provisions, subject to any constraints imposed by American public policy. ... But there has to be an American law principle calling for such application of foreign law. And in this case, there was no such principle.

Even where the party or parties have agreed to apply certain rules, American courts will refuse to enforce them if they violate American law or certain public policies. For example, American courts will no longer enforce covenants restricting the sale of land to exclude black purchasers, because doing so would effectively violate the Equal Protection Clause.

Another example: although Americans are generally free to bequeath their property as they see fit, they are not entirely free. In Minnesota, a wife or husband who lives in the state and who has been married to her or his spouse for at least 15 years is entitled to claim half of the spouse's estate (called an elective share), even if the spouse's will leaves less. That is significantly more than the 25% share to which shariah law evidently entitled Ombabi's widow (although, on the other hand, the elective share of a newlywed in Minnesota is considerably less than a wife's share under shariah).

In this case, the widow evidently lived in Sudan (where Muslim law applied), so she would not have been entitled to make a claim under Minnesota's elective share in any case.

Still, it remains to be seen whether state courts would apply shariah law, if the issue were timely raised and properly argued. Volokh suggests the court's decision was "influenced by a basic American legal principle: American courts apply American law, rather than one rule for Muslims, one rule for Christians, one rule for Jews, and so on." Notwithstanding certain exceptions, American courts also generally apply the same law to men and women.

Allowing Islamic shariah law to substitute for state law regarding inheritance and related matters would undercut the values of equal protection of the laws and equality before the law, and in many instances, would violate American law.

Johanna Markind is an attorney who writes about public policy and criminal justice.

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12 Reader Comments

Geoff Woods • Sep 15, 2016 at 14:39

Seems to me that considering changing a nation's laws to accommodate special interest groups, religions or "cults" is traveling down a slippery slope. To do so may well set precedent and open up the floodgates for individuals or "groups" in the future to flaunt their disdain for the collective, democratically arrived at, laws of the land. In this case, if the beneficiary (wife) of the deceased truly believes in the different set of laws of her husband's families "culture" rather than those of the democratic country in which she resides, then she always has the option of personally distributing (gifting) the some of the proceeds from the judgement to her husband's relatives, as she sees fit. For the domestic courts to consider any other outcome would be sheer folly.

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Josephine Bacon • Sep 15, 2016 at 03:02

The application of Shariah Law is illegal in western countries since it is in direct conflict with anti-discrimination laws, i.e. the laws that discriminate against women. This is equally true of Shariah divorce law as it is of inheritance law.

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V.L.M. • Sep 14, 2016 at 19:23

Why would the U.S. implement any area of Sharia Law here? It seems slanted toward men so it would violate equal rights in regards to inheritance, child custody, divorce, etc. And here in the U.S. men are not required to support women financially or otherwise so Sharia Law would work against women.

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Dell • Sep 14, 2016 at 17:33

U.S. law must be full and final in any court case. The issue of what happens in any other country or under any other system ought to be utterly irrelevant. This creep of backward and inequitable law like shariah must never be entertained by the U.S., or women's rights become uncertain and barbaric practises become possibilities.

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Lisel Sipes • Sep 14, 2016 at 16:38

If Muslims want Sharia law let them stay in their homelands!

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Jeff Page • Sep 14, 2016 at 14:35

State the bleeding obvious! The Muslims in the US and Europe will do everything they can to promote the cause of Islam. This is the most politicised "religion" on the planet. Whatever Muslims can do to undermine the laws of the host country in order to force Shariah onto the people they'll do it.
They already virtually succeeded in closing down free speech. The authorities see Muslims as a minority ethnic group and that's all they see them as, they never see them for what they really are, and completely ignore the reality happening on the streets of our towns and cities.Anywhere in the world where Muslims have entrenched themselves has resulted in a massive upsurge in sexual attacks and crime in general. Common sense is something we are all born with, but we gradually lose the ability to use it because of the propaganda fed to us throughout early childhood into adulthood.

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Michael Waugh • Sep 14, 2016 at 12:41

The mere suggestion that any minority law should have any standing in any Western state should never be considered. Islamic laws must remain where it belongs - in the uncivilised countries where it came from. The word sharia must not be heard in our countries.

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Kim • Sep 14, 2016 at 12:31

This case proves that Muslims immigrate to America (and other countries) but demand to be governed based on Sharia law. As their population in our country increases due to the refugee resettlement industry, so will the lawsuits grow exponentially clogging an already overburdened court system. A binding precedent needs to be established to ensure that only American laws are upheld.

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lyn uzelac • Sep 14, 2016 at 07:25

When a Moslem is stolen from will he have the right to demand the amputation of the thief's hand?

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Albert Reingewirtz • Sep 14, 2016 at 06:35

The woman won even though she is still in Sudan.

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Russell Albert Reingewirtz • Sep 15, 2016 at 05:13

The key word is Islam (submission).Once a court supports a claim under Sharia in preference to local laws, no matter how small or insignificant it seems, it will be seen as a submission (weakness in the democratic legal system) leading to more and greater claims for Sharia to be applied. Where does it stop? Lashings, honor killings, amputations, hanging, throwing off buildings, stoning, beheading. Sharia is discriminatory at best and barbaric at its worst.
It's our law, they (Islamists) claim and want everything their way even using our laws when it suits them. E.g freedom of speech etc. They will not stop until they have what they want. This needs to be fought now and nipped in the bud before it is too late.

Immigrants and visitors to any country that offers refuge or hospitality must accept and adapt to the laws of the country that allows them entry or go back to where they came from.

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Mels Russell • Sep 16, 2016 at 09:38

Russell is right. Where will "Submission" end? At Honor killings, Stoning of Raped Women, hence considered Adulterers, Amputations, beheadings, the killing of Infidels, Apostates and Falsely "accused" Blasphemers, where proof of innocence is non existent? All are Sharia Law Punishments. Beware, folks, Submission, perhaps less significantly, is already practised in Europe and the UK - not just on the street, even in some Law Courts. Beware. Be Vigilant.

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